Matter of Andes Cent. School Dist. v King

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Matter of Andes Cent. School Dist. v King 2012 NY Slip Op 31477(U) April 16, 2012 Sup Ct, Albany County Docket Number: 7053-11 Judge: George B. Ceresia Jr Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] STATE OF NEW YORK SUPmME COURT COUNTY OF ALBANY In the Matter of the Application of the ANDES CENTRAL SCHOOL DISTTRICT, Petitioner, For an Order and Judgment Pursuant to CPLR Article 78 Index No.7053-1 1 RJI NO. 01-11-ST3144 -againstJOHN KING, as Commissioner of the State Education Department of the State of New York; STATE EDUCATION DEPARTJMENT OF THE STATE OF NEW YORK; AMY HOFFMAN, Regional Associate for the New York State Education Department; and IRA AND L A W McINTOSH, Respondents. Special Term Hon. George B. Ceresia, Jr., Supreme Court Justice Presiding Appearances : HOGAN, SARZYNSKI, LYNCH, SUROWKA & DeWIND, LLP Attorneys for Petitioner (Amy E. Lucenti Esq., Of Counsel) P.O. Box 660 Binghamton, New York 13902 ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorneys for Respondents John Ring, State Education Department of the State of New York, and Amy Hoffman (William J. McCarthy, Esq., Of Counsel) The Capitol Albany, New York 12224-034 I [* 2] IRA AND LAURIE McINTOSH Pro se Respondents 547 Grornmeck Road Andes, New York 1373 1 DECISIONlJUDGMENT George 13. Ceresia, Jr., Justice Petitioner Andes Central School District (hereinafter petitioner) is the public school district within which A.M. and her parents, respondents Ira and Laurie McIntosh, reside. A.M. is classified as a student with multiple disabiIities and she receives home school instruction. According to A.M. S individuaIized education plan (hereinafter IEP), she qualifies for certain special education services, including physicd therapy, occupational therapy, and speech therapy. In May 201 1, Ira McIntosh filed a complaint with respondent New York State Education Department (hereinafter NYSED) aIleging that petitioner had repeatedly denied his requests to provide A.M. transportation to and from her special education services. In July 20 1 I, NYSED issued a determination finding that petitioner violated federal and state laws and regulations by failing to provide A.M. transportation from her home school location to the service site at the school district building for the purpose of receiving special education services (seeVerified Petition, Ex, 2). The determination directed petitioner to reimburse the McIntoshes for expenses related to the transportation of A.M. during the 20 10-201I school year, schedule a meeting to determine the appropriate leve1 ofmake-up services, and -2- [* 3] required petitioner to immediately begin transporting A.M. from her home to the site of the special education services. Thereafter, petitioner commenced the instant CPLR article 78 proceeding to challenge NYSED s determination. NYSED answered and set forth one objection in point of law, asserting that petitioner failed to state a cause of action. The McIntoshes also answered and oppose the relief sought in the petition. DISCUSSION In reviewing an administrative determination, the standard to be applied by the Court is severely limited to the issue of whether the determination was arbitrary, capricious, or affected by an error of law (Matter of Johnson v Ambach, 74 AD2d 986,987 [ 19801; see Matter of Senior Care Sews.. Inc. v New York State De@ of Health, 46 AD3d 962, 965 [2007]). It is well settled that a court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion (Matter of Pel1 v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck. Westchester County, 34 NY2d 222,23 1 [ 19741 [internal citations omitted]; Matter 0fE.W. Tompkins Co., Inc. v State Univ. ofN.Y., 61. AJl3d 1248, 1250 [2009], lv denied 13 NY3d 701 [2009]). Moreover, in order to maintain the limited nature of this review, it is incumbent upon the court to defer to t h e agency s construction of the statutes and regulations that it administers as long as that construction is not irrational or unreasonable (Matter of Metropolitan Assocs. Ltd. -3- [* 4] Partnership v New York State Div. of Hous. & Communi@ Renewal, 206 AD2d 25 1,252 [1994]). Petitioner contends that NYSED s determination was arbitrary, capricious and affected by an error of law. In support of its determination, NYSED cited Education Law 3602-c(2-c)and 34 CFR 300.139(b). Under Education Law Q 3402-c(2-c),disabled students in a home instruction program are deemed to be nonpublic school students for the purpose of receiving special education services. Moreover, federal law requires school districts to provide [s]ervices parentally-placed private school children with disabilities, including to transportation to and from the child s home to the site of special education services (34 CFR 300.139[b][l][i]). Nevertheless, petitioner maintains that transportation should not be deemed a special education service because it was omitted from A.M. S IEP. To the contrary, special education is defined as specially designed individualized or group instruction or special services or programs . . . and special transportation, provided at no cost to the parent, to meet the unique needs of students wt disabiIities (8 NYCRR ih 8 2OO.l[wwJ [emphasis supplied]). Given the foregoing language, the Court is not persuaded by petitioner s argument that a disabled home-schooled student is required to demonstrate the necessity for transportation. Simply stated, NYSED s construction of the applicable statutes and regulations is rational and reasonable. Therefore, the Court declines to disturb NYSED s determination. -4- [* 5] Accordingly it is ADJUDGED that the petition is dismissed and the relief requested therein is in dl respects denied. This DecisiodJudgment is being returned to the Attorneys for the State respondents. A I original supporting documentation is being filed with the County Clerk s Office. The L signing of this DecisiordJudgment shall not constitute entry or filing under CPLR 2220. Counsel are not relieved from the applicable provisions of that rule relating to filing, entry and notice of entry. Dated: Troy, New York April IC, 2012 J7&&. CLJ eorge B. Ceresia, Jr. Supreme Court Justice Papers Considered: 1. 2. 3. Notice of Petition, dated November 3, 20 1 1 ; Verified Petition, dated November 3,20 11, with annexed exhibits; Memorandum of Law on Behalf of Petitioner, dated November 3,20 11; Verified Answer, dated February 7,20 12; Affidavit of Amy Hoffman, sworn to February 7, 2012; Memorandum of Law in Opposition to Petitioner s Article 78 Petition, dated February 7, 20 12; and Answer and Response to Memorandum of Law, sworn to February 10,20 12, with annexed attachments, -5-

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